Florida Senate - 2019                                     SB 890
       By Senator Baxley
       12-01244-19                                            2019890__
    1                        A bill to be entitled                      
    2         An act relating to drug-free workplaces; amending s.
    3         440.102, F.S.; revising definitions; revising the
    4         contents of an employer policy statement with respect
    5         to employee drug use; revising the frequency of
    6         followup testing; revising specimen collection,
    7         verification, and documentation procedures; revising
    8         requirements for confirmation testing; conforming
    9         provisions to changes made by the act; revising
   10         minimum requirements for laboratory reports of a drug
   11         test result; providing an effective date.
   13  Be It Enacted by the Legislature of the State of Florida:
   15         Section 1. Paragraphs (c), (e), and (q) of subsection (1),
   16  paragraph (a) of subsection (3), paragraph (a) of subsection
   17  (4), paragraphs (b), (c), (e), (f), (g), (h), (j), (k), and (l)
   18  of subsection (5), subsection (6), paragraph (a) of subsection
   19  (7), and paragraph (c) of subsection (9) of section 440.102,
   20  Florida Statutes, are amended to read:
   21         440.102 Drug-free workplace program requirements.—The
   22  following provisions apply to a drug-free workplace program
   23  implemented pursuant to law or to rules adopted by the Agency
   24  for Health Care Administration:
   25         (1) DEFINITIONS.—Except where the context otherwise
   26  requires, as used in this act:
   27         (c) “Drug” means any form of alcohol, as defined in s.
   28  322.01(2), including a distilled spirit, wine, a malt beverage,
   29  or an intoxicating preparation; any controlled substance
   30  identified under Schedule I, Schedule II, Schedule III, Schedule
   31  IV, or Schedule V of s. 893.03; any controlled substance
   32  identified under Schedule I, Schedule II, Schedule III, Schedule
   33  IV, or Schedule V of the Controlled Substances Act, 21 U.S.C. s.
   34  812(c); liquor; an amphetamine; a cannabinoid; cocaine;
   35  phencyclidine (PCP); a hallucinogen; methaqualone; an opiate; a
   36  barbiturate; a benzodiazepine; a synthetic narcotic; a designer
   37  drug; or a metabolite of any of the substances listed in this
   38  paragraph. An employer may test an individual for any or all of
   39  such drugs.
   40         (e) “Drug test” or “test” means any chemical, biological,
   41  or physical instrumental analysis administered, by a laboratory
   42  certified by the United States Department of Health and Human
   43  Services or licensed by the Agency for Health Care
   44  Administration, for the purpose of determining the presence or
   45  absence of a drug or its metabolites. In the case of testing for
   46  the presence of alcohol, the test shall be conducted in
   47  accordance with the United States Department of Transportation
   48  alcohol testing procedures authorized under 49 C.F.R. part 40,
   49  subparts J through M.
   50         (q) “Specimen” means tissue, hair, or a product of the
   51  human body capable of revealing the presence of drugs or their
   52  metabolites, as approved by the United States Food and Drug
   53  Administration, or the Agency for Health Care Administration,
   54  the United States Department of Health and Human Services, or
   55  the United States Department of Transportation.
   57         (a) One time only, before prior to testing, an employer
   58  shall give all employees and job applicants for employment a
   59  written policy statement that which contains:
   60         1. A general statement of the employer’s policy on employee
   61  drug use, which must identify:
   62         a. The types of drug testing an employee or job applicant
   63  may be required to submit to, including reasonable-suspicion
   64  drug testing or drug testing conducted on any other basis.
   65         b. The actions the employer may take against an employee or
   66  job applicant on the basis of a positive confirmed drug test
   67  result.
   68         2. A statement advising the employee or job applicant of
   69  the existence of this section.
   70         3. A general statement concerning confidentiality.
   71         4. Procedures for employees and job applicants to
   72  confidentially report to a medical review officer the use of
   73  prescription or nonprescription medications to a medical review
   74  officer both before and after being tested.
   75         5. A list of the most common medications, by brand name or
   76  common name, as applicable, as well as by chemical name, which
   77  may alter or affect a drug test. A list of such medications as
   78  developed by the Agency for Health Care Administration shall be
   79  available to employers through the department.
   80         6. The consequences of refusing to submit to a drug test.
   81         7. A representative sampling of names, addresses, and
   82  telephone numbers of employee assistance programs and local drug
   83  rehabilitation programs.
   84         8. A statement that an employee or job applicant who
   85  receives a positive confirmed test result may contest or explain
   86  the result to the medical review officer within 5 working days
   87  after receiving written notification of the test result; that if
   88  an employee’s or job applicant’s explanation or challenge is
   89  unsatisfactory to the medical review officer, the medical review
   90  officer shall report a positive test result back to the
   91  employer; and that a person may contest the drug test result
   92  pursuant to law or to rules adopted by the Agency for Health
   93  Care Administration.
   94         9. A statement informing the employee or job applicant of
   95  his or her responsibility to notify the laboratory of any
   96  administrative or civil action brought pursuant to this section.
   97         10. A list of all drugs for which the employer will test,
   98  described by brand name or common name, as applicable, as well
   99  as by chemical name.
  100         11. A statement regarding any applicable collective
  101  bargaining agreement or contract and the right to appeal to the
  102  Public Employees Relations Commission or applicable court.
  103         12. A statement notifying employees and job applicants of
  104  their right to consult with a medical review officer for
  105  technical information regarding prescription or nonprescription
  106  medication.
  107         (4) TYPES OF TESTING.—
  108         (a) An employer is required to conduct the following types
  109  of drug tests:
  110         1. Job applicant drug testing.—An employer must require job
  111  applicants to submit to a drug test and may use a refusal to
  112  submit to a drug test or a positive confirmed drug test as a
  113  basis for refusing to hire a job applicant.
  114         2. Reasonable-suspicion drug testing.—An employer must
  115  require an employee to submit to reasonable-suspicion drug
  116  testing.
  117         3. Routine fitness-for-duty drug testing.—An employer must
  118  require an employee to submit to a drug test if the test is
  119  conducted as part of a routinely scheduled employee fitness-for
  120  duty medical examination that is part of the employer’s
  121  established policy or that is scheduled routinely for all
  122  members of an employment classification or group.
  123         4. Followup drug testing.—If the employee in the course of
  124  employment enters an employee assistance program for drug
  125  related problems, or a drug rehabilitation program, the employer
  126  must require the employee to submit to a drug test as a followup
  127  to such program, unless the employee voluntarily entered the
  128  program. In those cases, the employer has the option to not
  129  require followup testing. If followup testing is required, it
  130  must be conducted at least six times in the first year, and may
  131  be conducted twice for 1 additional year once a year for a 2
  132  year period after completion of the program. Advance notice of a
  133  followup testing date must not be given to the employee to be
  134  tested.
  135         (5) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
  136  collection and testing for drugs under this section shall be
  137  performed in accordance with the following procedures:
  138         (b) Specimen collection must be documented, and the
  139  documentation procedures shall include the:
  140         1. labeling of specimen containers so as to reasonably
  141  preclude the likelihood of erroneous identification of test
  142  results. For saliva or breath alcohol testing, a specimen
  143  container is not required if the specimen is not being
  144  transported to a laboratory for analysis
  145         2.A form for the employee or job applicant to provide any
  146  information he or she considers relevant to the test, including
  147  identification of currently or recently used prescription or
  148  nonprescription medication or other relevant medical
  149  information. The form must provide notice of the most common
  150  medications by brand name or common name, as applicable, as well
  151  as by chemical name, which may alter or affect a drug test. The
  152  providing of information shall not preclude the administration
  153  of the drug test, but shall be taken into account in
  154  interpreting any positive confirmed test result.
  155         (c) Specimen collection, storage, and transportation to a
  156  laboratory the testing site shall be performed in a manner that
  157  reasonably precludes contamination or adulteration of specimens.
  158         (e) A specimen for a drug test may be taken or collected by
  159  any person who meets the qualification standards for urine or
  160  oral fluid specimen collection as specified by the United States
  161  Department of Health and Human Services or the United States
  162  Department of Transportation. For alcohol testing, a person must
  163  meet the United States Department of Transportation standards
  164  for a screening test technician or a breath alcohol technician.
  165  A hair specimen may be collected and packaged by a person who
  166  has been trained and certified by a drug testing laboratory. A
  167  person who directly supervises an employee subject to testing
  168  may not serve as the specimen collector for that employee unless
  169  there is no other qualified specimen collector available of the
  170  following persons:
  171         1.A physician, a physician assistant, a registered
  172  professional nurse, a licensed practical nurse, or a nurse
  173  practitioner or a certified paramedic who is present at the
  174  scene of an accident for the purpose of rendering emergency
  175  medical service or treatment.
  176         2.A qualified person employed by a licensed or certified
  177  laboratory as described in subsection (9).
  178         (f) A person who collects or takes a specimen for a drug
  179  test shall collect an amount sufficient for two independent drug
  180  tests, one to screen the specimen and one for confirmation of
  181  the screening results, at a laboratory as determined by the
  182  Agency for Health Care Administration.
  183         (g) Every specimen that produces a positive, confirmed test
  184  result shall be preserved by the licensed or certified
  185  laboratory that conducted the confirmation test for a period of
  186  at least 1 year after the confirmation test was conducted 210
  187  days after the result of the test was mailed or otherwise
  188  delivered to the medical review officer. However, if an employee
  189  or job applicant undertakes an administrative or legal challenge
  190  to the test result, the employee or job applicant shall notify
  191  the laboratory and the sample shall be retained by the
  192  laboratory until the case or administrative appeal is settled.
  193  During the 60-day 180-day period after written notification of a
  194  positive test result, the employee or job applicant who has
  195  provided the specimen shall be permitted by the employer to have
  196  a portion of the specimen retested, at the employee’s or job
  197  applicant’s expense, at another laboratory, licensed and
  198  approved by the Agency for Health Care Administration, chosen by
  199  the employee or job applicant. The second laboratory must test
  200  the specimen at the limit of detection for the drug or analyte
  201  confirmed by the original at equal or greater sensitivity for
  202  the drug in question as the first laboratory. If the drug or
  203  analyte is detected by the second laboratory, the result shall
  204  be reported as reconfirmed positive. The first laboratory that
  205  performed the test for the employer is responsible for the
  206  transfer of the portion of the specimen to be retested, and for
  207  the integrity of the chain of custody during such transfer.
  208         (h) Within 5 working days after receipt of a positive
  209  verified confirmed test result from the medical review officer,
  210  an employer shall inform an employee or job applicant in writing
  211  of such positive test result, the consequences of such results,
  212  and the options available to the employee or job applicant. The
  213  employer shall provide to the employee or job applicant, upon
  214  request, a copy of the test results.
  215         (j) The employee’s or job applicant’s explanation or
  216  challenge of the positive test result is unsatisfactory to the
  217  employer, a written explanation as to why the employee’s or job
  218  applicant’s explanation is unsatisfactory, along with the report
  219  of positive result, shall be provided by the employer to the
  220  employee or job applicant; and All such documentation of a
  221  positive test shall be kept confidential by the employer
  222  pursuant to subsection (8) and shall be retained by the employer
  223  for at least 1 year.
  224         (k) An employer may not discharge, discipline, refuse to
  225  hire, discriminate against, or request or require rehabilitation
  226  of an employee or job applicant on the sole basis of a positive
  227  test result that has not been reviewed and verified by a
  228  confirmation test and by a medical review officer, except when a
  229  confirmed positive breath alcohol test was conducted in
  230  accordance with United States Department of Transportation
  231  alcohol testing procedures.
  232         (l) An employer that performs drug testing or specimen
  233  collection shall use chain-of-custody procedures established by
  234  the Agency for Health Care Administration, the United States
  235  Department of Health and Human Services, or the United States
  236  Department of Transportation to ensure proper recordkeeping,
  237  handling, labeling, and identification of all specimens tested.
  238         (6) CONFIRMATION TESTING.—
  239         (a) If an initial drug test is negative, the employer may
  240  in its sole discretion seek a confirmation test.
  241         (b)Only licensed or certified laboratories as described in
  242  subsection (9) may conduct confirmation drug tests.
  243         (c) All laboratory positive initial tests on a urine, oral
  244  fluid, blood, or hair specimen shall be confirmed using gas
  245  chromatography/mass spectrometry (GC/MS) or an equivalent or
  246  more accurate scientifically accepted method approved by the
  247  United States Department of Health and Human Services or the
  248  United States Department of Transportation Agency for Health
  249  Care Administration or the United States Food and Drug
  250  Administration as such technology becomes available in a cost
  251  effective form.
  252         (b)(d) If a an initial drug test of an employee or job
  253  applicant is confirmed by the laboratory as positive, the
  254  employer’s medical review officer shall provide technical
  255  assistance to the employer and to the employee or job applicant
  256  for the purpose of interpreting the test result to determine
  257  whether the result could have been caused by prescription or
  258  nonprescription medication taken by the employee or job
  259  applicant.
  260         (c)For a breath alcohol test, an initial positive result
  261  shall be confirmed by a second breath specimen taken and tested
  262  using an evidential breath testing device listed on the
  263  conforming products list issued by the National Highway Traffic
  264  Safety Administration and conducted in accordance with United
  265  States Department of Transportation alcohol testing procedures
  266  authorized under 49 C.F.R. part 40, subparts J through M.
  267         (7) EMPLOYER PROTECTION.—
  268         (a) An employee or job applicant whose drug test result is
  269  confirmed or verified as positive in accordance with this
  270  section shall not, by virtue of the result alone, be deemed to
  271  have a “handicap” or “disability” as defined under federal,
  272  state, or local handicap and disability discrimination laws.
  274         (c) A laboratory shall disclose to the medical review
  275  officer a written positive confirmed test result report within 7
  276  working days after receipt of the sample. All laboratory reports
  277  of a drug test result must, at a minimum, state:
  278         1. The name and address of the laboratory that performed
  279  the test and the positive identification of the person tested.
  280         2. Positive results on confirmation tests only, or negative
  281  results, as applicable.
  282         3. A list of the drugs for which the drug analyses were
  283  conducted.
  284         4. The type of tests conducted for both initial tests and
  285  confirmation tests and the minimum cutoff levels of the tests.
  286         5.Any correlation between medication reported by the
  287  employee or job applicant pursuant to subparagraph (5)(b)2. and
  288  a positive confirmed drug test result.
  290  A report must not disclose the presence or absence of any drug
  291  other than a specific drug and its metabolites listed pursuant
  292  to this section.
  293         Section 2. This act shall take effect July 1, 2019.